THE TYRANNY OF GOOD INTENTIONS AND THE DEATH OF THE PRESUMPTION OF INNOCENCE

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1.??INTRODUCTION

In Zambia, like many other countries, accused persons are presumed innocent until proven guilty. This has been the position since the birth of criminal law and this is what is known as the Presumption of Innocence. In criminal trials, the burden of proving an accused person’s guilty lies with the state (prosecution) who are the accuser. The state must produce evidence and discharge this burden to the standard of “beyond reasonable doubt”. This is what is called as the standard of proof. To summarize, the burden of proving a person’s guilty, after being accused of committing a crime, lies with the state who must discharge to the degree and standard of beyond reasonable doubt.

2.??BIBLICAL TRACES OF THE PRESUMPTION OF INNOCENCE

The presumption of innocence can be traced to the Holy Scriptures in the Garden of Eden. It is recorded in the Book of Genesis that God did not punish Adam and Eve without giving them a chance to exculpate themselves. God adduced evidence to the fact that the two had eaten of the forbidden fruit before he condemned them. The procedure, has since been that the accused are given are tried and evidence adduced to show their guilt. It is only at that time that the accused person will be condemned to penal sanctions. Following this position, Article 18 (2) of the Constitution of Zambia has maintained the presumption of innocence. It is a rebuttable presumption which ends upon production of evidence by the state to the required standard. The idea is that the accuser must be given an opportunity to state their case and the accused must equally be given time to state their case.

3.??TYRANNY OF GOOD INTENTIONS

The prosecution of crimes has never been an easy task. Criminal offenders have developed sophisticated ways in which to commit and conceal their crimes. This became a daunting task for prosecutors to effectively prosecute offenders and bring them to book. The sophistication even became more and more especially in the commission of economic crimes. Crimes such as money laundering and corruption became more and more difficult to prosecute. Later, states realized that as long as the burden of proof lay on the state then it would be impossible to prosecute economic crimes due to their sophistication and complexity. The global trends moved to shifting that burden from the state to the accused. The intention was good and tyranny moved in. It eroded the presumption of innocence and effectively put accused persons in a position of “guilty until proven innocent”. It was now the duty of accused persons to prove their innocence.

4.??THE DEATH OF THE PRESUMPTION OF INNOCENCE

The presumption of innocence is slowly dying and being killed through legislative interventions. It is uncommon in today’s world that state governments, using legislative organs as accomplices, have promulgated laws that have shifted the burden of proof from the accuser to the accused. This is what is famously beginning to be called “Lawfare”. Under Lawfare, laws are used to oppress the governed and suppress their freedoms.

In Zambia, two pieces of legislation come to mind in as far as shifting the burden of proof and killing the presumption of innocence is concerned. The first is the Forfeiture of Proceeds of Crime Act No. 19 of 2010 (FOPA) and the second is the Anti-Corruption Act No. 3 of 2012 (ACA). Prior to its enactment in 2010, the general position was that the accused was innocent until proven guilty. The position was the accuser had the burden of proving the guilt of the accused and not the other way round. Enter the FOPA, it watered down this position by effectively providing that the accused must prove their innocence. By the controversial decision in the case of The People v Austin Chisangu Liato (2014) this position was cemented into the law of Zambia. In this case, the Supreme Court overturned the decision of the High Court that affirmed the position in Zambia that the burden of proving one’s guilt lay with the accuser and it was not for the accused to prove their innocence. In its controversial decision, the Supreme Court held that it was only for the accuser to have a ‘reasonable suspicion’ that the accused was in possession of property reasonably suspected to be proceeds of crime and for the accused to account and prove their innocence. This law has been repeatedly used to torment political opponents and stifle legitimate businesses. It was the Patriotic Front (PF) that reinstated this law after the Movement for Multi-Party Democracy (MMD) had repealed it. For political expedience and to torment former MMD government officials including late President Rupiah Banda, the PF reinstated this law. Over 11 years later, the same law is biting PF officials. Will the UPND learn from this experience or will it be déjà vu in 2026 or whenever power is lost?

The second piece of legislation is the ACA as intimated in the preambular part of this paragraph. The burden of proving one’s guilt has been moved to the accused to prove their innocence most notably under sections 22 and 66 of the ACA. The above provisions, cited below seriatim, have shifted the burden from the accuser to the accused. By this provisions, two fundamental balances in the criminal justice mechanisms have been tampered with. The first is that the burden of proof has been shared between the state and the accused. The state proves one’s guilt halfway and then the accused has to prove their innocence. It follows that the accused is somewhat guilty until proven innocent. It also follows that it is the accused that must prove their innocence.

5.??GOOD INTENTIONS OF THE FRAMERS, FUEL FOR ILL-MOTIVE

Cardinal and canonical jurist Jean Lamoine and other early proponents of the presumption of innocence must be have their bodies turning looking at the assault of this fundamental feature of the criminal justice process through Lawfare tactics. The framers of the law of the land as found in Article 18 (2) of the Constitution were motivated by the writings of the likes of Jean Lamoine and a plethora of thinkers and philosophers. The idea is that the accuser, usually the state, have massive resources at their disposal to investigate and proffer evidence warranting the conviction of an individual. With the aid of accomplice legislatures, the accusers work has been made easy. Instead of investigating and gathering enough evidence, all the accuser has to do is to have a reasonable suspicion. Laws such as the FOPA and ACA, aided by decisions like the one in Austin Liato defeat the principle of presumption of innocence. Such laws must be visited as they promote impunity and excesses on the part of the state, which is the accuser. To shift the burden of proving one’s guilt or innocence on the accused defeats the long held and cherished principles such as the presumption of innocence. This principle can be traced from the Garden of Eden and will be used at Judgement Day. The process is for the accuser to lay their evidence and if overwhelming the accused to exculpate themselves and if they fail or there is no excuse or justification then they are said to be guilty as charged. Is the current law sustainable? Is it in order to assume all accused persons are guilty? Is it proper to have an environment in which citizens cannot prosper without the fear of them being accused of being criminals? Why do we wait until change of government before going after those suspected to be in possession of proceeds of crime? Is this confirmation that our law enforcement is not independent but politically controlled? What have done in order to change the status quo?